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Friday, March 9, 2012

ROMANIAN AND BULGARIAN NATIONALS – RIGHT TO RESIDE AND ACCESS TO SOCIAL BENEFITS

Romanian Bulgarian nationals who are the parents of Irish citizen children now have access to the Labour Market within Ireland on the same basis as other EU nationals. See “Employment Permit Information for Romanian Naiontals” on the Department of Jobs, Enterprise and Innovation website;

Many of the persons affected by the Minister’s change in policy are in situations where they have been refused access to social benefits, including Jobs Seekers Allowance, Child Benefit payments and Supplementary Welfare Allowance. Having been refused these payments, they are now without any means of income whatsoever. They have been refused access to social benefits usually on the basis of the Habitual Residence Condition, or for the reason that they are not eligible to take up employment in the State. Many have doubted the legitimacy of refusals on the basis of the Habitual Residence Condition, given that the persons have often resided in the State since 2007, have children in school, and have clearly made Ireland their “centre of interest”.

Until now, these Romanian and Bulgarian nationals’ status in the State has been somewhat unclear. They were not legally resident within the ambit of Directive 2004/38, nor did the State recognize an alternative right to reside under the Treaty provisions. However, there was no legal means under EU law which permitted the State to lawfully require their removal from the State. Many such persons have fallen into destitution, surviving with the assistance of charities and voluntary organizations.

The Minster’s change in policy this week to permit Romanian and Bulgarian nationals who are the parents of Irish citizen children access the Labour Market now changes their status in the State, and also their entitlements to access social benefits. Such persons are now eligible to take up employment, and can commence a legitimate search for employment. Those Romanian and Bulgarian nationals who are already in employment, will be immediately regarded as workers within the meaning of EU law and Directive 2004/38. Their right to reside will be also immediately legitimised. They will acquire the benefits of worker status under EU law, for example, they will have access to the State welfare system, including child benefit payments. Should they become involuntarily unemployed and register as a job seeker, they will retain their worker status (and thus their right to reside) either indefinitely if they had worked for over one year, or for at least a period of six months if they had worked for under one year.

For those Romanians and Bulgarian nationals, who are the parents of Irish citizen children, and who are not currently in employment, they can now commence a legitimate search for employment, and therefore must be regarded as economically active as Job Seekers under EU Law. Pursuant to Regulation 1612/68, all EU citizens have the right to move within the territory of the EU to seek employment for at least a six month period. As legitimate Job Seekers, they have a lawful right to reside. They can therefore apply to all benefits including Child Benefit and Jobseekers Allowance and Supplementary Welfare Allowance. If they becomes employed (either part time or full time), self employed, a student or financially self sufficient (with health insurance), they then trigger their “worker status”, and the benefits as described above.

The question now to be determined is when did the Romanian/Bulgarian parents of Irish citizen children commence lawful status in the State? Was it on the 28th February 2012, when the government implemented this change in policy? Or was it previous to this, when the Zambrano judgment was delivered? When the Treaty of the Functioning of the EU was implemented? The answer to these questions could have a signigicant conssequences for those who may have been wrongly refused accesss to social benefits. Most likely, these are questions to be determined by the Court of Justice.

9 comments:

Brophy solicitors , please let us know when its gone be implemented ...before 28th feb or after , cause i was refused on baby child benefit 2 years ago and i would like to know if i have to ask child benefit is it gone be from january 2010 or feb 2012...thanks

Thank you for your interest in our Immigration Blog. We confirm that your query has been reviewed by one of our Immigration Solicitor. We would be happy to arrange a legal advice consultation with you. Please contact us on info@brophysolicitors.ie to provide your contact details so that we can make the necessary arrangements.

hello,i just wonder if you can help us,we are a young married couple from Romania,we came in Ireland in September 2008 and we worked for the last 3 years in full time, unfortunately without work permit because the company for which we worked refused to apply for us.In the end we found a company who hired us and applied for work permit and they have been refused,after more attempts ours manager asked us to apply individual and to pay the 1000 euro fee and so we did.My wife applied first and she got her work permit in 17/02/2012 and here our problem begin.We got married last year in August and we will have a baby in one week time ,she worked for this company from July 2010 and now she is in maternity leave but we got refused on maternity benefit because she didn't work on work permit prior to 17/02/2012 ,she has only one month legally to say,the answer from maternity benefit section it was that her PRSI is not valid prior to that date.My question is,we will have any chance to get this maternity benefit because honest to be i am the only one who is working now and the money that i am earning will not be sufficient to raise my baby and to offer to my family what they needs.thank you

i am working legal 6 years now in ireland but without having one work permit. i just loose my job and social welfare told me that my stamps are not valid because had no work permit for the previous years, what can i do to be reqognised my stamps?